A secret court is no place for important constitutional issues

ASK THIS | July 25, 2006

How can a court that only hears one side of the argument and doesn’t disclose its decisions possibly be allowed to decide on the constitutionality of President Bush’s secret spying programs? What could possibly be less American?

Senate Judiciary Committee Chairman Arlen Specter has proposed that the Foreign Intelligence Surveillance Court – a secret court created to approve the most sensitive government wiretaps – should be the only court allowed to hear arguments about the constitutionality of President Bush’s secret domestic spying programs.

Q. Under Specter's bill, only one side—the executive branch— would be allowed to make its case. While this process may be acceptable for determinations of individual warrant applications where the adversarial process and publicity would undermine legitimate law enforcement activities, is this process appropriate to determine the constitutionality of broad programs that affect, thousands, if not millions, of U.S. citizens?

Q. When the court reaches a decision, who would be informed, and under what circumstances? The Specter bill provides for notification of the congressional intelligence committees when a program submitted to FISC by the president is found to be unconstitutional. However, will anyone in Congress be notified if FISC approves the constitutionality of programs? What about the rest of the judicial branch? What about the public?

Q. Will the basis of the decisions and the arguments made be disclosed to anyone?

Q. How does one court communicate to other courts secret precedent?

Q. Who can appeal a decision made when only one side—the executive branch—presents its arguments, and the decision is secret?

Q. Do FISC court decisions on the constitutionality of programs become constitutional precedent? Will these decisions become a secret set of constitutional precedents? If so, in what situations can these precedents be applied?

Q. If the president loses at both the FISC and the Foreign Intelligence Court of Review and the U.S. Supreme Court decides the case, is that opinion secret? If so, is there a possibility the Supreme Court will have tell future litigants that they lost or won partially or solely because of a precedent that cannot be revealed?

Q. Should FISC's track record when it comes to approving government requests – from 1979 to the end of 2004, it granted 18,742 eavesdropping applications and turned down only four – be a cause for concern if the court’s responsibilities are dramatically expanded?

On December 16, 2005, the New York Times revealed the existence of a warrantless electronic surveillance program run by the highly secretive National Security Agency (NSA). The program clearly violates the Foreign Intelligence Surveillance Act, the 1978 law that strictly regulates domestic spying.

Senator Arlen Specter (R-PA), the chairman of Senate Judiciary Committee, has taken a lead role in attempting to bring the NSA program within the law by offering a bill that vests the Foreign Intelligence Surveillance Court with the power to review the constitutionality of surveillance programs.

Specter’s bill, Senate Bill 2453, presents numerous difficulties concerning definitions of terms, procedural issues, power ceded to the president both obliquely and explicitly, and lack of effective oversight.

But my concerns here are with the effects the bill would have on the traditional functioning of the federal judiciary. Specter's bill radically elevates the secretive FISC from being a court that reviews individual warrant applications to one that can decide on the constitutionality of entire electronic surveillance programs.

If passed, the Specter bill would introduce all sorts of anomalies and dilemmas into the operation of the judiciary. According to the bill, the FISC would have "the authority to review electronic surveillance programs and pass upon their constitutionality." A set of law forged in secret, only partially available to congressional oversight, and for practical purposes not subject to U.S. Supreme Court review, is astounding and could result in serious damage to privacy rights, other civil liberties and our constitutional system of checks and balances.

History is replete with congressional efforts to curb executive branch abuses of power, efforts that often turn out to fuel the very abuses they are meant to stop. The Specter bill would be another example of a putative limitation on executive power that actually increases presidential authority. Most significantly, it will allow the president to forge a new constitutional jurisprudence that is unavailable to the public and courts save the select few people in the Foreign Intelligence Surveillance Act (FISA) process.